Ram Baran Man and Others vs Janki Man and Others

This was a suit in ejectment instituted under the provisions of Section 58 of Act II of 1901. The parties were co-sharers. A partition took place in the year 1905. The plots now in suit are numbered 1008 and 1009. The defence was that upon objection raised by the defendant in the partition proceedings, the Assistant Collector had decided that he was the khudkasht holder of these 2 plots. This order of the Assistant Collector who made the partition is upon the record. In the final order of the Collector confirming the partition proceedings these 2 plots were assigned to the plaintiff''s share. There is no explanation as to why the Collector ignored the order of the Assistant Collector and both the Courts below appear to be of opinion that the Collector''s order was a mistake. The plaintiff instituted this suit, upon the strength of the entries in the village papers and the final order of Collector, to eject the defendant from these two plots. The first Court dismissed the suit holding that in virtue of the order of the Assistant Collector the defendants were entitled to remain in possession of the plots in suit. The District Judge, however was of opinion that the final order of the Collector confirming the partition proceeding must be given effect to. The result was that the lower appellate Court decreed the suit for ejectment. The defendants come here in second appeal. In my opinion the appeal must succeed. There is in the plaintiff''s favour, the order of the Assistant Collector passed after trial. It has not been shown that this order has been set aside in appeal or otherwise and it would appear that the final order of the Collector awarding the plots in dispute to the plaintiff''s share was due to inadvertence and mistake. It would be wrong to perpetuate the consequences of this mistake. The appeal is allowed. The decree of the lower appellate Court is set aside and that of the first Court restored. The appellant will get his costs in all Courts.